The Equal Employment Opportunity Commission (“EEOC”) issued a proposed guidance on June 2, 2016, clarifying its view of national origin discrimination. By issuing the proposed guidance, the EEOC seeks to explain its interpretation of the law regarding national origin discrimination in the context of various workplace situations. The proposed guidance covers a variety of issues, including human trafficking, discriminatory customer preferences, language discrimination, and citizenship discrimination.

According to the guidance, employers that hire victims of human trafficking may violate Title VII in addition to criminal laws. If victims of human trafficking are forced to work against their will, employers could be liable for unlawful harassment as a result of a hostile working environment. In addition, employers could face liability for discrimination if the victims of human trafficking are discriminated against based on their national origin or ethnicity. With respect to customer preference, the guidance indicates that employers cannot use customer or client preference as a justification for discrimination on the basis of national origin. If the employer takes action in response to a client preference for a particular national origin, the employer will be liable for national origin discrimination.

The guidance also warns employers against making employment decisions on the basis of linguistic characteristics. Employers may only make fluency in English a requirement if it is necessary for the effective performance of the positon. With respect to citizenship, Title VII applies regardless of whether an individual is legally able to work in the United States. Employers may, however, ensure that they do not hire an individual who is not legally authorized to work in the United States.

The EEOC has opened the proposed guidance to public comment, which ends July 1, 2016. After July 1, 2016, the EEOC will consider the public input and finalize the guidance, which will supersede EEOC Compliance Manual, Volume II, Section 13: National Origin Discrimination.

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